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Can I send my cousins pistol to him?

Discussion in 'Legal' started by Hasaf, Jul 18, 2019.

  1. Hasaf

    Hasaf Member

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    My cousin left his pistol in my safe when he left the country. He is now back. He wants me to fed-ex his pistol to him.

    When I look, it looks like I can not, it needs to go to an FFL. He is convinced that, because it is his, I can send it straight to him.

    Before I do something illegal, can I send it straight to him?
     
  2. pdsmith505

    pdsmith505 Member

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    You are currently in possession of the firearm. That is what matters.

    You cannot legally transfer possession of a firearm to another individual across state lines without the services of an FFL.

    18 USC 922 (a) (5)
     
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  3. Hasaf

    Hasaf Member

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    That's what I thought.
     
  4. mljdeckard

    mljdeckard Member

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    Yeah. I held a pistol for a friend while he trotted the globe for army stuff. I finally got around to sending it back to him on the east coast, UPS, next-day, it was like $110.

    FFL.
     
  5. AlexanderA
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    AlexanderA Member

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    Federal firearms law keys on possession, not on ownership. When your cousin left his gun in your safe, to which you had access, he effectively transferred possession to you. To transfer the gun back to him, across state lines, you must go through an FFL.

    Actually, strictly speaking, if your cousin was a resident of another state when he originally left his pistol in your safe, an FFL should have been involved in that transaction as well. But it's too late to do anything about that now.

    To be honest, this is the sort of situation in which the letter of the law is widely ignored.

    ETA: The situation would be different if the storage medium had been a rental locker or bank safe deposit box to which only your cousin had the key. In that case possession would not have been transferred.
     
    Last edited: Jul 18, 2019
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  6. pdsmith505

    pdsmith505 Member

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    For future reference, even though mere mortals find themselves with no good options on how to ship a handgun to a receiving FFL in this situation, you can likely find a local FFL willing to charge a small (relative to the cost of overnight air shipping) fee to utilize cheaper (they can ship USPS, aren't restricted to overnight air, etc) methods of shipment to the receiving FFL for subsequent transfer to the recipient.
     
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  7. herrwalther

    herrwalther Member

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    Legally, it was gifted to you when he left the country. As you maintained a more permanent possession of it than he did. Use the FFL and get it back to him the legal way.
     
  8. Frank Ettin

    Frank Ettin Moderator

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    It seems that there's an underlying assumption that you and your cousin are residents of different States. Let's proceed on that assumption (and if that's not the case, let us know so that we can re-examine the question).

    So based on that assumption, you're correct. So let me lay it all out for you and your cousin.

    Giving guns to someone in another State to store for you is highly problematic under federal law.

    The federal laws relating to the transfer of a gun from a resident of one State to a resident of another (i. e., the Gun Control Act of 1968 or GCA68) are about physical possession, not ownership. GCA68 was Congress' responding to enormous public pressure after the assassinations by gunfire of three wildly popular public figures -- JFK, RFK and MLK. The law was intended to regulate and control the interstate transfer of firearms. It was structured so that to the extent reasonably possible any transfer of possession of a gun from a resident of one State to a resident of another would have to go through an FFL.

    And in the context of the concerns intended to be addressed by Congress through GCA68, it's possession and not ownership that matters. Someone who has a gun in his possession can use it, whether or not he has legal title to it.

    Giving someone your gun to store for you will be considered a transfer. It certainly is under federal law, and would also most likely be also considered a transfer under state laws. That's just what "transfer" means.

    1. In general, any transfer of a firearm from a resident of one State to a resident of another must go through an FFL who will follow all usual formalities (e. g., completion of the 4473). There are a few limited, narrow, specific exceptions: if you have an appropriate federal firearms license; inheritance by will or intestate succession; or a loan (subject to a number of limitations which will be discussed in more detail below).

    2. The applicable federal statutes are: 18 USC 922(a)(3); 18 USC 922(a)(5); and 18 USC 922 (b)(3). The full texts of those statutes may be found here.

    3. The federal laws I've cited are about possession, not necessarily ownership.

      • Possession means:

      • Transfer is about possession, not ownership. Some definitions of "transfer" (emphasis added):


      • Let's look at the statutes:

        • 18 USC 922(a)(3), which provides in pertinent part (emphasis added) as follows:

        • And 18 USC 922(a)(5), which provides in pertinent part (emphasis added) as follows:

      • Note carefully the words of those statutes. Words, like "transport", "receive", "obtained", "transfer", "give", "transport", and "deliver" do not necessarily imply ownership and include possession. They will be read and applied by a court according to their ordinary meanings. See Perrin v. United States, 444 U.S. 37 (United States Supreme Court, 1979), at 42:

    4. With regard to loans under GCA68, let's look at the applicable statutes again:

      • 18 USC 922(a)(3), which provides in pertinent part (emphasis added) as follows:

      • And 18 USC 922(a)(5), which provides in pertinent part (emphasis added) as follows:

      • So under federal law a resident of one State may loan a gun to a resident of another State, but only temporarily and only for a lawful sporting purpose.

        • Temporary means:

        • Sporting means (in this context):

        • Purpose means (in this context):

      • So a court is likely to look at the "temporary loan for a lawful sporting purpose" exception to the prohibition on interstate transfers to apply when a gun is loaned so that the person it's been loaned to can engage in a specific sporting activity (i. e., a hunt, a competition, etc.) of limited duration. "Temporary" would refer to the duration of that activity. Such an interpretation would be consistent with the common meanings of the words used in the statutes and the underlying purpose (controlling interstate transfers of firearms) of GCA68.

      • So you may go to another State where (under 18 USC 922(a)(5)), a friend may loan you a gun to, for example, go target shooting together, or an outfitter may rent you a gun for a guided hunt. But since there is no applicable "loan" exception in 18 USC 922(a)(3), a loan of a firearm may not cross state lines to the borrower's State of residence.

    5. Is there no way to store your gun in another State?

      • Leaving a gun with someone in another State clearly raises interstate transfer problems when that person has access to the gun.

      • One possible way to avoid the problem would be to secure the gun or guns in a locked case or similar container to which only you have the key or combination.

      • That might avoid the transfer problem inherent in having someone store your guns, ATF has advised here that one may ship a firearm to himself in care of another person in another State.

        Specifically ATF has said (emphasis added):

    6. Note that violations of federal law regarding interstate transfers are punishable by up to five years in federal prison and/or a fine; and since the crime is a felony one will lose his gun rights for the rest of his life.
     
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  9. Speedo66

    Speedo66 Member

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    Looks like you're going to have to ship it either way. This company, owned by Bud's, seems to be the least expensive way to ship. You pay them, they send you a prepaid label for about half what you'd ordinarily pay.

    https://www.shipmygun.com/go/
     
  10. Hasaf

    Hasaf Member

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    Thanks, I will give them a try.
     
  11. AlexanderA
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    AlexanderA Member

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    No. To have a completed gift, there must be intent by the donor. Instead of a gift, what we have here is a "gratuitous bailment."

    But that doesn't matter. What matters is possession, not title.

    If the cousin had stored the gun in a locked box in the OP's home and taken the key with him, so that the OP didn't have access, then maybe they could have skipped involvement by an FFL in the original bailment. (On the ground that this wasn't a "transfer of possession.")

    Sending the gun back to him still contained in the original locked box would be an interesting permutation of this problem. The OP would never have had access, or "possession," at any time.
     
  12. MedWheeler

    MedWheeler Member

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    AlexanderA writes:

    While I might not have "access" to its contents, am I not in "possession" of the contents of any container of which I am in possession? For example, could I not be charged with possession of, say, illicit drugs, if I had such a secured container holding them and was caught with it?
     
    Last edited: Jul 18, 2019
  13. Ironicaintit

    Ironicaintit Member

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    [QUOTE="MedWheeler, post: 11182196, member: 70976"
    While I might not have "access" to its contents, am I not in "possession" of the contents of any container of which I am in possession? For example, could I be charged with possession of, say, illicit drugs, if I had such a secured container holding them and was caught with it?[/QUOTE]

    you sure could. "It's not mine" is the oldest cliche alibi in the book
     
  14. MedWheeler

    MedWheeler Member

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    ^^ Yes, that was my point indeed.
     
  15. AlexanderA
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    AlexanderA Member

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    I don't know about drugs, but a locked safe is a recognized way of showing that a given person doesn't have access. For example, someone with NFA items can keep his spouse out of trouble for having unauthorized access, by making sure she doesn't have the combination to his safe. (Assuming the items are held as an individual, and not in a trust.)
     
  16. GAF

    GAF Member

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    I think the situation is rather simple. If you live in a state where private sales are allowed with no ffl and your cousin lives in the same state you guys can meet in the middle somewhere for lunch and you hand the gun back to him. If this is not the law in your state then the path is defined by law for you. The other path for you across states lines it also laid out by law as Frank Ettin wrote.
     
  17. pdsmith505

    pdsmith505 Member

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    I assumed the brother was somewhere out of state... the vast majority of states are not so large that a weekend trip to visit your in-state brother would be inconvenient.

    As a side note, if it were a rifle or shotgun instead of a handgun and both parties were residents of the same state, he could mail the rifle/shotgun via the US Postal Service and be perfectly legal (from a federal standpoint).

    None of the private shippers are willing to conduct non-ffl to non-ffl shipments under any circumstances.
     
  18. JDR

    JDR Member

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    Let me tell you this process is anything but simple. After I had moved from Pennsylvania to Colorado, I took my firearms out of storage to a Pennsylvania FFL & had them ship my goods parcel post to a post office nearest to my CO residence. Even though I owned all of the guns being shipped, I had to show my ID and proof of where I had moved to in CO (by that time I had a CO drivers license along with my invalid PA drivers license). The FFL would not touch any of my stuff if I had not produced my CO DL with my new address on it. The FFL had to verify all of the NICS info on each of the guns (all were bought in PA) and then log all of the serial numbers onto his books with all the parcel post waybill numbers. The FFL’s transaction and shipping logs are subject to BATF inspection audit so like I said this process is anything but simple.

    Based on what I went through with my own firearms, and this is going to sound mean, but honestly I would tell your cousin that the gun is right where he left it and waiting for him to pick it up next time he’s in town.
     
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  19. Telekinesis

    Telekinesis Member

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    Recommending the OP tell his cousin to commit a felony because it's easier is a great way to make sure that neither of them can own firearms in the future.
     
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  20. jjadurbin

    jjadurbin Member

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    Why can't his cousin come visit him, and send it back himself to himself, if this statement is correct?
    Federal law allows you to ship the firearm yourself, addressed to yourself.
    https://www.thehighroad.org/index.php?threads/how-to-ship-firearms.651375/


     
  21. total recoil

    total recoil Member

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    What if the pistol is a black powder pistol????????????????
     
  22. pdsmith505

    pdsmith505 Member

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    Because Person A is in possession of the firearm in State A. Person B is a resident of State B. Person A can't transfer possession of the firearm to Person B in State A. Person A cannot transfer possession of the firearm to Person B in State B either.

    Whether the illegal transfer happens by mail or over the kitchen counter, it's still an illegal transfer.
     
  23. JDR

    JDR Member

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    This is yet another post where the OP asks an initial question but leaves out a lot of the pertinent details, and the rest of us are left to try & guess what those details are to try & give the OP a correct and LEGAL response.

    The best that I can tell WITHOUT KNOWING WHICH STATE THE FIREARM IS BEING SHIPPED FROM OR TO, is that the firearm can possibly be shipped through an FFL directly to the owners confirmed address, as long as the FFL is provided with the necessary information to allow the firearm to pass through the FFL’s books, which as I said are subject to BATFE audit and inspection. Otherwise a THR moderator should probably just shut this post down.
     
  24. Frank Ettin

    Frank Ettin Moderator

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    That is ridiculous. Can you cite case law or a statute supporting that contention?

    In fact what you suggest would be a violation of federal law, specifically 18 USC 922(a)(2).

    Why don’t you do a little research before posting an answer to a legal question?
     
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  25. JDR

    JDR Member

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    I asked an FFL about this, and the OP’s cousin needs to consult an FFL directly and in person about shipping his own firearm, the OP cannot act on his cousins behalf to ship the firearm. Not quite what I stated above so I stand corrected.
     
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